For certain individuals, the best route to permanent residence may be to seek approval of an immigrant petition in one of the classifications below. The three categories, extraordinary ability, outstanding researcher, and national interest waiver, offer a route to permanent residence that does not require the lengthy labor certification process. Two of the categories do not require an offer of employment and so can be filed by an individual. The standards for approval are, however, stringent. Please keep in mind that the classifications below are the first step in applying to become a permanent resident. You must also file, either concurrently or subsequent to approval of the immigrant petition, an application to adjust your status to that of permanent resident, or once the immigrant petition is approved, seek an immigrant visa through consular processing. An explanation of this last component is addressed below.
Extraordinary Ability
The extraordinary ability classification (EB-1) is only available to a small segment of workers who can demonstrate their extraordinary abilities place them at the very top of their fields. The USCIS lists evidence like a Nobel Prize as evidence that might qualify an applicant in this category. In reality, many people who have not (yet!) received a Nobel Prize can qualify in this category. Even so, however, the requirements are stringent. As we begin the process of preparing your petition, we will provide you with specific guidelines, samples, and recommendations regarding the necessary evidence you must provide to establish your qualifications to be classified as an individual of extraordinary ability. In general, you must be able to present sufficient evidence in the categories list below.
- Documentation of your receipt of nationally or internationally recognized prizes or awards for excellence in your field of endeavor
- Documentation of your membership in associations in your field which require outstanding achievements of their members, as judged by recognized national or international experts in your disciplines or fields
- Published material in professional or major trade publications or major media about your work in the field
- Evidence of your participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization
- Evidence of your original scientific, scholarly or business related contributions of major significance in the field
- Evidence of your authorship of scholarly articles in the field, in professional journals or other major media
- Evidence that you have been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
- Evidence that you have commanded and now command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
Outstanding Professor or Researcher
To seek classification as an outstanding researcher/professor (EB-1, 2) your employer must present evidence that demonstrates that: you have at least three years of experience in teaching or research; you are seeking a permanent residence to remain in the United States to work for an employer that normally employs at least three persons full time in research activities and who has offered you “permanent” or tenure track employment; and finally that you are recognized internationally as outstanding in your area of expertise.
As evidence of international recognition, you will be expected to present evidence of at least three of the following:
- Letters of recommendation from other distinguished professionals in your field of expertise attesting to your level of achievement and acclaim. (We will assist in preparing drafts for the referees to use in finalizing their letters of support.) Receipt of nationally or internationally recognized prizes or awards for excellence in your field.
- Membership in associations in your field which require outstanding achievements as judged by recognized national or international experts.
- Published material about you in professional or major trade publications or other major media.
- Participation on a panel or individually as a judge of others in your field or an allied field.
- Original scientific contributions of major significance in your field (publications).
- Authorship of scholarly articles in professional or major trade publications or other major media.
- A high salary or other remuneration for your services.
- A leading or critical position for organizations that have a distinguished reputation.
Multi-National Executives or Managers
Certain executives and high-level managers employed by multi-national corporations may be able to obtain U.S. permanent residency based on their transfer from a foreign company to a U.S. affiliate.
The foreign national must be employed or be seeking employment in the U.S. as an executive or manager with the same company (or a parent, subsidiary or affiliate) that employed him outside the U.S. as an executive or manager for at least one year during the past three years (or for at least one year during the three years prior to entry if already in the U.S.). This category corresponds to the L-1 temporary visa category, except that “specialized knowledge” workers are not included, and the sponsoring company must show that it has been doing business in the U.S. for at least one year before commencing the application.
National Interest Waivers
In approving a national interest waiver (NIW) petition (EB-2 NIW), the US Citizenship & Immigration Services (USCIS) is “waiving” several of the requirements which usually apply to an employment-based immigrant petition, including the labor certification requirement. This type of waiver is highly desirable and is only available to exceptional workers or professionals with advanced educational degrees whose work is considered to be in the national interest of the United States. To benefit from this process, the petitioner (either the beneficiary or an employer) must prove the following by a “preponderance” of the evidence:
- The foreign national’s proposed endeavor has both substantial merit and national importance.
- The foreign national is well positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Historically, this has required proof that the beneficiary has some impact on his or her field, and that the contributions exceed what is normally expected from someone with a similar background and training.
Petitions normally contain evidence in the following categories:
- Letters of recommendation from other distinguished professionals in the field of expertise attesting to the beneficiary’s level of achievement and acclaim.
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field.
- Membership in associations in the field which require outstanding achievements as judged by recognized national or international experts.
- Published material about the beneficiary in professional or major trade publications or other major media.
- Participation on a panel or individually as a judge of others in the field or in an allied field.
- Original scientific contributions of major significance in the field.
- Authorship of scholarly articles in professional or major trade publications or other major media.
- A high salary or other remuneration for the beneficiary’s services.
- A leading or critical position for organizations that have a distinguished reputation.
Adjustment of Status
Assuming an immigrant visa is available, you (and your spouse and children under 21) may file your application for Adjustment of Status (I-485) concurrently with the immigrant petition or later, after it is approved. This particular application is intended to document that you are legally present in the US and are not excludable due to communicable disease, the use of illegal drugs, criminal convictions or activities, etc. When you file for adjustment of status, you may also file for employment authorization (work permit), allowing you to work while the process is concluded. Sometimes an adjustment case cannot be filed if you have violated your status in the US in some way.
You will need to have a physical examination by a USCIS approved physician to assess your health with specific statutory concerns in mind, e.g., TB, AIDS, certain required vaccinations, etc. It is best to undertake the medical exam only after discussing it with our office so that it is not stale when submitted with the application. You will have to provide evidence bearing on your admissibility, such as letters confirming your employment, copies of your birth and/or marriage certificates, your immigration documents (such as visas, prior approval notices, I-20 forms, etc.). Applicants will be expected to attend a biometrics appointment so that the required background check can be completed.
Once the I-485 application is filed with USCIS, you and any family members may not travel outside the US without advance permission from the USCIS unless you hold valid H-1B or L status. Advance permission is almost always granted for adjustment applicants, but it can take several months. This advance permission can be sought on an expedited basis in emergent situations (e.g., to visit a dying relative abroad).
Once the USCIS has finished its background check, determined that the application is complete, and verified that the employee’s “priority date” remains current, USCIS will either simply approve the case or schedule an interview at the local USCIS District Office. If the priority date is not current, the file will be set aside and will be reexamined when the priority date becomes current again. Sometimes, the employee will have to update his or her fingerprints or medical examination before the case can be approved. The USCIS will give notice if this is necessary.
Consular Processing
Immigrant visa processing through a US consulate follows the general pattern of adjustment filings. Once the I-140 case has been approved, the DOS’s National Visa Center (NVC) will send out a fee bill for the case. Once this is paid, the NVC will request certain paperwork and, once the paperwork is supplied, will send the file to the proper consulate for an interview. If the interview substantiates the petition and the individual’s eligibility for admission to the US, an immigrant visa is issued, and the individual becomes a permanent resident once he or she uses that visa to enter the US.
